Member of Unlawful Assembly Cannot Escape Conviction By Claiming He Only Carried a Lathi and Struck No One: Allahabad High Court

"Chhotoo, who was part of unlawful assembly, his role cannot be ignored even if he has not inflicted any injury", Allahabad High Court has reaffirmed a crucial principle of criminal law — that a member of an unlawful assembly sharing a common object is equally liable for every offence committed in furtherance of that object, and cannot escape conviction under Section 149 IPC merely because no witness specifically attributed a particular injury to him.

Justice Avnish Saxena, upholding the conviction of the sole surviving appellant in a 1984 group assault case, held that the presence of an accused in an unlawful assembly with a weapon in hand is itself sufficient to fasten vicarious criminal liability, regardless of whether he personally inflicted an identifiable blow.

The core question was whether a member of an unlawful assembly who carries a weapon but against whom no specific overt act of injuring a particular victim is proved can be convicted for offences committed by other members of the assembly in furtherance of the common object.

Specific Attribution of Injury Not Required Under Section 149

The defence contended that Chhotoo's role was limited to carrying a lathi, that there was no specific statement from any witness as to whom he had struck, and that in the absence of proof of an individual overt act, he could at best be held liable for voluntary causing of hurt — not for the graver offences including attempt to murder committed by the assembly.

The Court rejected this argument in its entirety. Three independent witnesses — PW-1 Ram Nath (the injured informant), PW-2 Asharfi Devi (the injured wife), and PW-3 Dubri (independent eye witness who arrived with a torch) — all consistently placed Chhotoo at the scene as an active member of the assembly, armed with a lathi. The blunt object injuries suffered by the children of the informant were fully consistent with lathi blows. But the Court held that even this evidentiary correspondence was secondary to the fundamental legal position: once membership of an unlawful assembly with a common object is proved, Section 149 IPC operates to make each member constructively liable for every offence committed by any member in furtherance of that object.

"PW-1 Ram Nath, PW-2 Asarfi Devi and PW-3 Dubri have specifically stated in their statements about the role of accused Chhotoo having lathi in his hand and becoming a member of the unlawful assembly, who had barged into the house of injured at night with deadly weapon in their hands."

Weapon in Hand + Membership of Assembly = Liability Fixed

The Court's reasoning rested on the nature of the common object of the unlawful assembly. All six accused belonged to the same family and shared a property dispute with the informant. They arrived together at night, armed with varied weapons of escalating lethality — from lathis to a country-made pistol. The deliberate arming of each member, the coordinated entry into the informant's house, and the simultaneous assault on multiple family members — including a ten-year-old child — were all indicators of a unified criminal purpose.

The Court held that in such a scenario, it is wholly irrelevant that Chhotoo's personal weapon was a lathi rather than a firearm or a sharp object. He was part of the assembly that shared the common object, was physically present at the scene with a weapon, and participated in the assault. The law under Section 149 IPC does not require proof of which specific blow each member delivered.

"The sons and daughters of Ramnath suffered two injuries each by the blunt object, which is lathi and danda and Chhotoo, who was part of unlawful assembly, his role cannot be ignored even if he has not inflicted any injury."

Ocular Testimony of Injured Witnesses Fully Corroborated

The Court also noted that the conviction rested on a solid evidentiary foundation. Two injured eye witnesses and one independent eye witness all consistently identified Chhotoo with his weapon. The medico-legal reports of all five injured family members — examined by PW-5 Dr. C.P. Singh between 2:10 a.m. and 3:30 a.m. on 21.12.1984 — fully corroborated the nature of weapons described by the witnesses. The prompt lodging of the FIR within hours of the incident, before any opportunity for deliberate concoction, further reinforced the reliability of the prosecution case.

The suggestion of dacoity by unknown persons was specifically rejected — no valuables were looted, no stranger was identified, and the accused were identified in the light of a lantern burning inside the informant's house and the torch carried by independent witness Dubri.

"The chain of incident and events are so intertwined and pragmatic that there seems to be no chance of false implication or concoction of story to falsely implicate the accused."

Conviction Under Section 307/149 Affirmed

The Court affirmed Chhotoo's conviction under Sections 147, 323, 452, 324 read with 149, and 307 read with 149 IPC — including the most serious charge of attempt to murder under Section 307, fastened upon him through the constructive liability mechanism of Section 149. The fact that the actual gunshot was fired by a co-accused who has since died does not dilute the liability of those who participated in the assembly sharing that common object.

The Allahabad High Court dismissed the appeal on the question of conviction, holding that membership of an unlawful assembly armed with a weapon, combined with consistent identification by multiple witnesses including injured eye witnesses, is sufficient to sustain conviction under Section 149 IPC for all offences committed in furtherance of the common object — including attempt to murder — even where no specific blow by that particular accused is individually proved. The Court separately modified the sentence to the period already undergone, having regard to the 40-year pendency and the appellant's age of 64 years.

Date of Decision: 15th April, 2026